JUDGMENT :

Dhananjaya Y Chandrachud, J.

1. Leave granted.

2. This appeal arises from an order of a Division Bench of the High Court of Orissa dated 21 January 2021. The High Court has allowed a writ petition filed by the first respondent allowing institutions imparting education to grant admission to the students for the B.Tech (Engineering) degree course for academic session 2020-21 on the basis of the marks obtained in the qualifying examinations. This is purportedly in relaxation of a statutory requirement that all admissions have to be based on a centralized entrance test.

3. In the State of Orissa, there is a legislation called the Odisha Professional Educational Institutions (Regulation of Admission and Fixation of Fees) Act 2007[“2007 Act”]. Section 3 of the Digitally signed by Sanjay Kumar Date: 2021.07.07 15:29:23 IST Reason: Signature Not Verified 2 2007 Act contains the following provision:

"3. (1) Subject to the provisions of this Act, admission of students in all private professional educational institutions, Govt. institutions and sponsored institutions to all seats including lateral entry seats, shall be made through Entrance Tests approved by the Government followed by centralized counselling in order of merit, in accordance with such procedure as recommended by the Policy Planning Body and approved by the Government.

(2) After vacancy round of Odisha Joint Entrance Examination (OJEE)/ Diploma Entrance Test (DET) Counselling, i.e. after minimum of two rounds of Centralized Counselling, the modalities shall be decided by the Government from time to time for filling up of the vacant seats taking candidates from the Entrance Tests approved by the Government on merit basis of all the Technical and Professional Institutes under the supervision of the OJEE/DET Committee. The seats to which candidates could not be sponsored due to dearth of choice and the seats remained vacant due to non-reporting cases 2nd round of Centralized Counselling shall be considered as vacant seats against which the College can admit students following the modalities fixed by the Government. In any case, the reported cases shall not be given further opportunity to participate in the admission process meant for filling up of vacancies at Institution level".

4. As a result of the outbreak of the Covid-19 pandemic, the All India Council for Technical Education [“AICTE”] issued a circular dated 19 August 2020 by which relaxed eligibility criteria for students taking admission to vacant seats available for the PGDM/MBA courses were prescribed on the basis of marks scored by the aspirants in the qualifying examination. The first respondent, placing reliance upon the circular, filed a petition under Article 226 of the Constitution before the High Court seeking a direction to the State Government to implement this circular for B.Tech Degree courses. The High Court, by its order dated 24 December 2020, left it to the discretion of AICTE and the State Government to determine whether a similar benefit as granted to students pursuing the PGDM/MBA courses should be extended in making admissions for the B. Tech (Engineering) degree course. Pursuant to the direction of the High Court, the AICTE issued a letter dated 6 January 2021. AICTE clarified the position in the following terms:

“This office has examined the matter in details and found that the Circular dated 19.08.2020 had been issued in respect of the PGDM course keeping in view the situation prevailing at the relevant time as indicated in the said circular, which included that in many states the several All India Entrance Tests could not be conducted or delayed due to the COVID-19 pandemic. However, the same was not the case so far as the B.Tech Engineering stream is concerned. So issuing any general circular for admission into engineering courses at par with the Circular dated 19.08.2020 was not felt